A drunken driving charge against a Hellertown man has been thrown out by a Northampton County judge because the man was not operating the car when he was arrested by police.

Michael Duffin, 43, of 1319 Main St. was arrested after he was found slumped over the wheel of his parked car just a few houses away from his own on Aug. 13 in the 1300 block of Main Street.

Patrolman Michael K. Evans, after failing to awaken Duffin by knocking on the car window, opened the door and shook Duffin by the shoulder. Evans saw the keys in the car's ignition; the gear shift was not in the park position, according to police accounts.

Duffin rolled out of the driver's seat and nearly fell to the macadam, police said. The officer helped him up, and he was taken to a DUI center. His blood-alcohol reading was .12 percent.

According to Judge James C. Hogan's ruling, to be charged with drunken driving, a person must be in physical control of a vehicle. And under state law, a person is considered intoxicated with a blood-alcohol level of .10 percent.

The judge said state law requires that a parked car must be started and running before a finding of "actual physical control" can be made.

Hogan said while the circumstances raised a strong suspicion Duffin drove his car while intoxicated, police failed to establish that he committed a crime even though he admitted driving the car.

Evans was called to the scene by a police dispatcher after Chief Robert Balum, who was off duty at the time, drove by Duffin and saw him slumped over the steering wheel.

Evans had passed the area about four minutes prior to receiving the call, and Duffin was not there at that time. The judge said the nature and extent of Duffin's actions prior to Evans' arrival were speculative.

While recognizing the "commendable" actions of the officers, and noting that those actions may have saved potential injury and damage from occurring, he said the facts failed to establish a case of criminal conduct to a level that could be submitted to a jury.